Interim Order 7

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 183/2024
Ayasha & Ors. ....Plaintiffs
Versus
Mohd. Shokeen ….Defendant
15.01.2025
ORDER ON APPLICATION UNDER ORDER XXXIX RULE 1 &
2 READ WITH SECTION 151 CPC MOVED ON BEHALF OF
PLAINTIFFS.
1. Vide this order, I shall dispose of an application under Order
XXXIX Rule 1 & 2 read with section 151 CPC moved on behalf of
plaintiffs.
2. It is stated in the application U/o XXXIX Rule 1 & 2 r/w Sec.
151 CPC that contents of plaint be read as part and parcel of
application. It is stated in the plaint that the mother of the plaintiff
namely Late Sanjida W/o Mohd. Shokeen had demised on
06.02.2024, leaving behind the property bearing number F-403,
Main 25 Futa Road, Chand Bagh, Village Ziaduddin Pur, Illaqa
Shahdara, Delhi-110094. It is stated that property is measuring 27
square yards without ground floor rights, but with first, second and
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third floor alongwith roof rights. It is further stated that Late Sanjida
was the actual owner of the abovesaid property and she had left
behind the plaintiffs, Mohd. Shokeen(husband of deceased), Ashbab
and Subhana as her legal heirs. It is further stated that mother of the
plaintiff had purchased the abvoesaid property in September 2019.
After the death of the mother of the plaintiffs the behavior of the
defendant is totally changed. It is further stated that defendant is in
the habit of abusing the plaintiffs and even plaintiffs’ mother was
not provided treatment by the defendant. Plaintiff no. 1 had also
lodged an FIR bearing no. 320/2024 against the defendant. It is
further stated that defendant is now trying to sell out the aforesaid
property. It is further stated that defendant is harassing/threatening
the plaintiffs and asked them to relinquish the property in his favour.
It is therefore requested to restrain the defendant and to not allowed
him to enter in the portion of the plaintiffs that is first and second
floor of suit property bearing number F-403, out of Khasra number
7/2, situated at the abadi main 25 futa road F-Block, Chand Bagh,
Village Ziauddin Pur, Illaqa Shahdara, Delhi-110094.
3. Reply has been filed on behalf of defendant to the abovesaid
application of plaintiffs in which it is stated that contents of written
statement be read as part and parcel of reply. In the written
statement, apart from denying all the allegations made by the
plaintiffs, it is stated that it is submitted by the defendant the present
suit is not maintainable since no consequential relief has been
claimed by the plaintiffs in relation to the portion of which plaintiffs
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are claiming the possession. It is further stated that the property is in
the power and possession of the defendant and plaintiffs have not
filed the appropriate court fess. It is also stated that only out of love
and affection defendant had purchased the suit property in the name
of his wife though defendant is the owner of the same. It is further
stated that plaintiffs number 1, 2 and 3 are the daughters of the
defendant no. 1. It is further stated that plaintiffs had threatened the
defendant father that they would implicate him in false cases and all
the allegations leveled by the plaintiffs in their plaint against the
defendant father are false and fabricated. It is further stated that wife
of the defendant was a heart patient since the year 2013 and she was
well taken care of by the defendant. It is further stated that in-laws
of the defendant had instigated the plaintiffs against the defendant.
Defendant had filed the complaint against the plaintiffs on
13.05.2024, but no action was taken. It is also stated that there is
discrepancy with respect to the signing the plaint and filing of the
affidavit. It is further stated that plaintiffs are residing in their
maternal uncle’s house. During the period of their stay in the house
of the defendant they took away all the jewellery, papers of property
etc. It is also stated that defendant had purchased this property form
one Huma Parveen to whom the defendants had paid the amount of
Rs. 14,50,000/- in cash. The amount was arranged by the defendant
after taking loan and he also gave his property that is F-204, to
Huma Parveen. It is therefore requested that application of plaintiff
be dismissed.
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4. Submissions on behalf of parties heard at length. Application
perused carefully. Learned counsel for defendant during the course
of arguments submits that he has no objection of application of
plaintiff is allowed.
5. In issuing temporary injunction the tests to be applied are (i)
whether the plaintiff has a
prima facie case, (ii) whether the balance
of convenience is in favour of the plaintiff, and (iii) whether the
plaintiff would suffer an irreparable injury if his prayer for
temporary injunction is disallowed. This Court is required to see
prima facie case, balance of convenience as well as irreparable loss.
While, considering the question of
prima facie, it is not to be
confused with
prima facie title. What is required is that the plaintiff
has to show that he has
bona fide raised a substantial question,
which needs to be adjudicated at the trial of the suit. The plaintiff is
thus required to
prima facie establish that in the event of non-
interference by the Court, it will result in irreparable injury and
substantial loss.
6. Also, while considering irreparable injury comparatively,
which of the parties would be put to more or substantial mischief in
the event of refusal to grant a temporary injunction and if the Court
considers that the subject-matter of the suit must be maintained
status quo, then discretion must be exercised in favour of the party
seeking temporary injunction, so, that the subject matter of the suit
in dispute can be preserved. In the instant case, admittedly the
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property is in the name of the mother of the plaintiff and she had
died intestate. All the involved parties are co-shares/legal heirs of
deceased owner of suit property. Thus, it can be said that plaintiff
has been able to show
prima facie case in his favour. Balance of
convenience also lies in favour of the plaintiff. Court is also
convinced that the plaintiff shall suffer irreparable loss and injury, if
interim protection is denied to the plaintiff.
7. Accordingly, in the totality of circumstances, application
under Order XXXIX Rule 1 & 2 read with section 151 CPC moved
on behalf of plaintiffs is disposed of as allowed. Both the parties are
directed to maintain the status quo in respect of nature, title and
possession of the suit property till the further orders.
8. Nothing stated herein above shall tantamount to expression of
opinion on the merits of the case.
9. Copy of this order be given
dasti to Ld. Counsels for both the
parties.
(Manu Vedwan)
DJ-02/North-East, KKD Courts,
Delhi/15.01.2025
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